District Consumer Disputes Redressal Forum
Civil Station, Palakkad – 678 001, Kerala
Dated this the 29th day of November, 2010
Present: Smt.Seena.H, President
Smt.Preetha.G.Nair, Member
Date of filing: 18/07/09
CC. No.126/2009
Harikrishnan
S/o.Nagappan
Kallamkulam House
Marutharoad
Palakkad - Complainant
(By Adv.M.Rajesh)
Vs
1. The Managing Director
Force Motors Ltd
Mumbai – Pune Road
Akurdi
Pune 411 035
(By Adv.E.Ramachandran)
2. The Regional Manager
Force Motors Ltd.
Kochi Depot
Mundampalam,
Thrikkakara.P.O
Cochin 682 021
3. The Manager
Anugraha Automobiles
Coimbatore Road,
Kalmandapam
Palakkad - Opposite parties
(By Adv.K.S.Stanly James)
O R D E R
By Smt. Preetha.G.Nair, Member
The complainant has purchased a vehicle registered as KL-09 U8340 on 05/02/2007 for his self employment. The vehicle is a minidor which is used for transporting milk in contract basis and the vehicle is hypothecated to State Bank of India, Palakkad. The complainant was regular in payment of the monthly installments to the bank till the vehicle is met with mechanical failure and given to the 3rd opposite party for repair. The vehicle was not in good shape from the very beginning and it was making trouble to the complainant on various occasions and the same is reported to 3rd opposite party. But he did not care to resolve the problems. Thereafter the vehicle was non-functional due to seizing of the engine of the vehicle and given to the 3rd opposite party within the warranty period. After the warranty period the 3rd opposite party has repaired the vehicle for an amount of Rs.30,938/-. The bill which is handed over to the complainant revealed that most of the entries are repeated. The complainant has enquired about the type of the work carried out in the vehicle and surprised to notice that the entire work and the changing of spares will cost much less than the bill served to him by the opposite party. The complainant has made repeated demands to the 3rd opposite party to resolve the dispute. But there was no steps taken by 3rd opposite party. The complainant has not able to run his contract work and lost the work. The complainant has not paid loan amount to bank. All these acts of opposite parties amounts to deficiency in service. Hence the complainant prays an order directing the opposite parties to
1. Repair the vehicle and hand over the same without any charges to the complainant,
2. Allow the compensation for mental agony and loss of reputation of the complainant an amount of Rs.15,000/- and Rs.50,000/- for the loss of earning due to the unlawful detention of the vehicle and
3. Allow all the costs of the proceedings.
Opposite parties 1 and 3 filed version. 2nd opposite party was absent and set ex-parte. Opposite parties filed version stating the following contentions. 1st opposite party admitted that the vehicle bearing chassis No.T16005916 and engine No.D38002734 is manufactured but they are not related to the transaction of sale of vehicle to the complainant. The aforesaid dealers M/s.Anugraha Automobiles, purchases the vehicles in bulk from the company and effect retail sale to the customers. The relationship between the 1st opposite party and 3rd opposite party, the dealer, is on principal-to-principal basis. Further 1st opposite party stated that the vehicles undergo pre-delivery inspection carried by the dealer and further road trials are carried out by the dealers as well as customers before delivery of the vehicle. Therefore the vehicle delivered to the complainant was in good condition. The 1st opposite party submitted that as per the service record the vehicle was repaired during the service period for some minor problems of starting and general check up. Also 1st opposite party stated that the complainant have not promptly availed all free service checks and routine maintenance as specified in the owners manual and service coupon book. So the 1st opposite party stated that the contentions raised by the complainant are not true and correct. So 1st opposite party prayed that the complaint be dismissed with cost of Rs.10,000/-.
3rd opposite party filed version stating the following contentions. Admittedly the complainant has purchased the Minidor autorikshaw and it is manufactured by 1st opposite party. Job of 3rd opposite party is only to sell the vehicle without any alteration in as such condition as manufactured by the 1st opposite party. Further 3rd opposite party stated that no defects in the engine have developed in the vehicle within the period of warranty. As alleged by the complainant the 3rd opposite party has not repeated the entries in the bill or charged more amount from the complainant than the entire work of changing of spares. The 3rd opposite party denied that the vehicle was not in good shape from the very beginning and it was making trouble to the complainant on various occasions and reported to 3rd opposite party but not cared to resolve the problems. The 3rd opposite party stated that the complainant has not availed service checks as specified in the terms and conditions of warranty policy. Terms and conditions of warranty are detailed in the service coupon book handed over to complainant at the time of purchase of vehicle. Also 3rd opposite party stated that the complainant has not made any complaint about the performance of vehicle. Further 1st and 3rd opposite parties contented that the complainant is not a consumer under the Consumer Protection Act. Hence 3rd opposite party prayed that dismiss the complaint with cost.
Complainant and 1st and 3rd opposite parties filed chief affidavit and documents. Exts.A1 to A6 marked on the side of complainant. Ext.B1 marked on the side of 1st opposite party. Complainant was cross examined. 3rd opposite party not present for cross examination. Matter was heard.
Issues to be considered are;
1. Whether the complainant is a consumer or not?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the relief and cost entitled to the complainant?
Issue No.1: The complainant stated that he has purchased the vehicle for earning his livelihood by way of transport of milk on contract basis. The opposite parties stated that complainant has used the vehicle for transporting the milk on contract basis. Hence the complainant does not fall within the definition of the term consumer as per the Consumer Protection Act. No evidence was produced by the opposite parties to prove the vehicle used for transporting the milk on contract basis is a commercial use. So the complainant is a consumer as per the provisions of Section 2(1)(d) of the Consumer Protection Act.
Issues 2 & 3: We perused relevant documents on record. Admittedly the complainant has purchased the vehicle from the 3rd opposite party. According to Ext.A1 the vehicle is hypothecated to State Bank of India, Town Branch, Palakkad and 3rd opposite party is the dealer. As per Ext.A2 the 3rd opposite party issued cash bill of Rs.9,836.49 dt.25/01/08 to the complainant. According to Ext.A3 3rd opposite party issued cash bill of Rs.13,342.18 to the complainant dt.27/05/08. The 3rd opposite party stated that as per the terms and conditions of policy, the complainant has not come for the periodic service of vehicle. As per Ext.B1 the vehicle was serviced on 12/03/07, 10/05/07 and 18/07/07. As per Ext.A2 and A3 the complainant has handed over the vehicle to 3rd opposite party for repairing and issued the cash bill. At the time of cross examination, complainant stated that the vehicle had made complaints before the service period and the vehicle has handed over to the 3rd opposite party. Also the complainant stated that the service manual book was in the custody of 3rd opposite party. But no contrary evidence was produced by 3rd opposite party. As per Ext.A1 the date of delivery of vehicle was 05/02/07. As per Ext.A2 the complainant has came to 3rd opposite party for repairing the vehicle on 25/01/08. Therefore the 3rd opposite party has repaired the vehicle within 360 days. The 1st opposite party stated that certain problems were occur due to several other reasons beyond the control of any manufacturer or dealer like nature, manner of usage, lack of proper maintenance of the vehicle, driving habits, load conditions, oil and fuel quality, weight of the load put on the vehicle etc. No evidence was produced by 1st opposite party to prove the vehicle had occurred above problems. The complainant has not produced commission report for proving manufacturing defect. Thus the cash bills of Ext.A2 and A3 shows the vehicle has made complaints within the warranty period. At the time of cross examination the complainant stated that now the vehicle was in the custody of 3rd opposite party. The complainant stated that he has not paid the loan amount to the bank due to the vehicle is in the custody of 3rd opposite party. According to the documents produced by the complainant shows that the 3rd opposite party has repaired the vehicle within the warranty period. 2nd opposite party has not filed version and affidavit. Complainant filed IA No.184/2010 for cross examination of 3rd opposite party. But 3rd opposite party has not appeared for cross examination. In the above discussions, we hold the view that there is deficiency in service on the part of opposite parties. Hence the complaint allowed.
We direct all opposite parties jointly and severally liable to repair the vehicle free of cost and hand over the vehicle to the complainant within one month from the date of order and pay Rs.10,000/- (Rupees Ten thousand only) as compensation for mental agony and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. If opposite parties fail to comply the order within the stipulated period, the opposite parties shall be liable to pay further amount of Rs.15,000/- (Rupees Fifteen thousand only) with 9% interest p.a for the whole amount from the date of order till realisation along with vehicle to the complainant.
Pronounced in the open court on this the 29th day of November, 2010
Sd/-
Smt.Seena.H,
President
Sd/- Smt.Preetha.G.Nair,
Member
Date of filing: 18/07/2009
Appendix
Witnesses examined on the side of complainant
PW1 – Shri.Harikrishnan
Witnesses examined on the side of opposite parties
Nil
Exhibits marked on the side of complainant
Ext.A1 – Photocopy of certificate of registration
Ext.A2 – Photocopy of Invoice No.002786 dt.25/01/08
Ext.A3 – Photocopy of Invoice No.000344 dt.27/05/08
Ext.A4 – Photocopy of receipt for 3,500/-
Ext.A5 – Photocopy of receipt for 1,500/-
Ext.A6 – Photocopies of bills dt.30/05/08
Exhibits marked on the side of opposite parties
Ext.B1 – Delivery coupon details
Cost (Allowed)
Rs.1,000/- (Rupees One thousand only) allowed as cost of the proceedings
